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Of Non-Horses, Quantum Mechanics, and the Establishment Clause

This article argues that the quest for neutrality that has dominated a half-century of Establishment Clause jurisprudence is fundamentally misguided. Drawing a clue from an ancient Chinese philosopher, the article suggests that it is no more possible to be neutral "between religion and non-religion" than it would be to be neither a horse nor a non-horse. After examining the futile attempts at a solution to this conundrum in a pair of Supreme Court cases concerning the Ten Commandments, the article turns its focus to an odd philosophical statement from quantum mechanics. A series of phenomena defied attempts by classical physics to explain them. In response, a group of scientists at Copenhagen derived the extraordinary principle that measurement does not confirm an underlying state of reality. Rather, underlying reality exists only as a state of probabilities, and only the act of measuring forces a particular outcome on any experiment. The article then transplants this idea to the Establishment Clause. I suggest that in cases involving government speech, neither compliance with nor violation of the Constitution occurs until a court rules. In practice, the adoption of this principle would guide courts to intervene to prevent introduction into the public square of new forms of religious speech, but leave alone those of long-standing. The article concludes by examining a series of recent lower court decisions of challenges to government speech, noting the possible superiority of a Copenhagen approach to the doctrinal chaos that seems to lend itself only to the idiosyncratic decisions of particular judges.